A brief discussion on probation is contained in this section. For a more comprehensive discussion, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 2, Chapter 9.
A court may place a defendant1 on probation under the charge and supervision of a probation officer, if the court determines that a defendant convicted of any crime other than murder, treason, first-degree criminal sexual conduct, third-degree criminal sexual conduct, armed robbery, or major controlled substance offenses, is unlikely to engage in an offensive or criminal course of conduct again, and that the public good does not require that the defendant suffer the penalty imposed by law.2 MCL 771.1(1).
Note: An offender who is found guilty of, or pleads guilty to, a violation of assault under MCL 750.81 or aggravated assault under MCL 750.81a may be eligible for deferred proceedings under MCL 769.4a. MCL 769.4a allows the court to place the defendant on probation after a finding of guilt, without entering judgment. See Section 2.3(C) for more information on deferred sentencing for domestic assault cases.3
MCL 771.1(2) also provides “[i]n an action in which the court may place the defendant on probation, the court may delay sentencing the defendant for not more than 1 year to give the defendant an opportunity to prove to the court his or her eligibility for probation or other leniency compatible with the ends of justice and the defendant’s rehabilitation, such as participation in a drug treatment court under . . . MCL 600.1060 to [MCL] 600.1088.”4
If a court sentences a defendant to probation, it must, in a court order entered in the case and made a part of the record, “determine the period, conditions, and rehabilitation goals of probation.” MCL 771.2(11); MCL 771.2a(5).5
A.Length of Probationary Period
Except as provided in MCL 771.2a and MCL 768.36,6 the term of probation imposed on a defendant must not exceed 2 years in a misdemeanor offense or 3 years in a felony offense.7 MCL 771.2(1).
Under MCL 771.2a,
“(1) [t]he court may place an individual convicted of [stalking under] MCL 750.411h, on probation for not more than 5 years. The sentence is subject to the conditions of probation set forth in [MCL 750.411h(3)], and [MCL 771.3]. The probation is subject to revocation for any violation of a condition of that probation.[8]
(2) [t]he court may place an individual convicted of [aggravated stalking under] MCL 750.411i, on probation for any term of years, but not less than 5 years. The sentence is subject to the conditions of probation set forth in [MCL 750.411i(4)], and [MCL 771.3]. The probation is subject to revocation for any violation of a condition of that probation.[9]
(3) [t]he court may place an individual convicted of [child abuse under] MCL 750.136b, that is designated as a misdemeanor on probation for not more than 5 years.[10]
(4) [e]xcept as provided in [MCL 771.2a(2)] and [MCL 771.2a(6)], the court may place an individual convicted of a violent felony on probation for not more than 5 years.
* * *
(7) [e]xcept as otherwise provided by law, the court may place an individual convicted of a listed offense on probation subject to the requirements of [MCL 771.2a(7)] and [MCL 771.2a(8)-(13)] for any term of years but not less than 5 years.”
Note: “[MCL 771.2a(1)-(5)] do not apply to a juvenile placed on probation and committed under [MCL 769.1(3)] or [MCL 769.1(4)] to an institution or agency described in the youth rehabilitation services act, . . . MCL 803.301 to [MCL] 803.309.” MCL 771.2a(6).
1.Mandatory Conditions of Probation
MCL 771.3(1) provides a list of probation conditions that must be included in the sentence of probation:
•the probationer must not violate any criminal law of this state, the United States, or another state, or any ordinance of any municipality in this state or another state. MCL 771.3(1)(a).
•the probationer must not leave Michigan without the court’s consent. MCL 771.3(1)(b).
•the probationer must report (in person, virtually, or in writing) to his or her probation officer each month, or as often as the probation officer requires.11 MCL 771.3(1)(c).
•if the probationer is sentenced in circuit court, he or she must pay a probation supervision fee as set out in MCL 771.3c. MCL 771.3(1)(d).
•the probationer must pay restitution to the victim of the probationer’s course of conduct leading to the conviction, or to the victim’s estate. The order to pay restitution may be modified and must be enforced. MCL 771.3(1)(e).
•the probationer must pay a crime victim assessment as set out in MCL 780.905. MCL 771.3(1)(f).
•the probationer must pay the minimum state cost as set out in MCL 769.1j.12 MCL 771.3(1)(g).
•if required, the probationer must be registered under and comply with the sex offenders registration act (MCL 28.721 to MCL 28.736).13 MCL 771.3(1)(h).
In addition, subject to the exceptions listed in MCL 771.2a(9)-(13), the court must order an individual who has been placed on probation under MCL 771.2a(7) (for committing a listed offense) not to reside, work, or loiter within a student safety zone. MCL 771.2a(8).
2.Discretionary Conditions of Probation
Subject to MCL 771.3(11),14 MCL 771.3(2) provides a list of probation conditions the court may include in the sentence of probation:
“(a) Be imprisoned in the county jail for not more than 12 months at the time or intervals that may be consecutive or nonconsecutive, within the probation as the court determines. However, the period of confinement must not exceed the maximum period of imprisonment provided for the offense charged if the maximum period is less than 12 months. The court may permit day parole as authorized under . . . MCL 801.251 to [MCL] 801.258. The court may, subject to [MCL 771.3d] and [MCL 771.3e],[15] permit the individual to be released from jail to work at his or her existing job or to attend a school in which he or she is enrolled as a student. This subdivision does not apply to a juvenile placed on probation and committed under . . . [MCL 769.1(3)] or [MCL 769.1(4)] to an institution or agency described in the youth rehabilitation services act, . . . MCL 803.301 to [MCL] 803.309.
(b) Pay immediately or within the period of his or her probation a fine imposed when placed on probation.
(c) Pay costs pursuant to [MCL 771.3(5)16].
(d) Pay any assessment ordered by the court other than an assessment described in [MCL 771.3(1)(f)].
(e) Engage in community service.
(f) Agree to pay by wage assignment any restitution, assessment, fine, or cost imposed by the court.
(g) Participate in inpatient or outpatient drug treatment, or a drug treatment court under . . . MCL 600.1060 to [MCL] 600.1084.
(h) Participate in mental health treatment.
(i) Participate in mental health or substance abuse counseling.
(j) Participate in a community corrections program.
(k) Be under house arrest.
(l) Be subject to electronic monitoring.
(m) Participate in a residential probation program.
(n) Satisfactorily complete a program of incarceration in a special alternative incarceration unit as provided in [MCL 771.3b].
(o) Be subject to conditions reasonably necessary for the protection of 1 or more named persons.[17]
(p) Reimburse the county for expenses incurred by the county in connection with the conviction for which probation was ordered as provided in the prisoner reimbursement to the county act, . . . MCL 801.81 to [MCL] 801.93.
(q) Complete his or her high school education or obtain the equivalency of a high school education in the form of a general education development (GED) certificate.”
“Subject to [MCL 771.3(11)], [t]he court may impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper.” MCL 771.3(3).18
For a defendant convicted of stalking under MCL 750.411h or aggravated stalking under MCL 750.411i, a court may also include in the probation order that the defendant:
“(a) [r]efrain from stalking any individual during the term of probation.
(b) [r]efrain from having any contact with the victim of the offense.
(c) [b]e evaluated to determine the need for psychiatric, psychological, or social counseling and, if determined appropriate by the court, to receive psychiatric, psychological, or social counseling at the individual’s own expense.”19 MCL 750.411h(3); MCL 750.411i(4).
C.Monitoring Compliance with Conditions of Probation
1.Mandatory Reporting As Condition of Probation
As part of the sentence of probation, MCL 771.3(1)(c) requires the probationer to report (in person, virtually, or in writing) to his or her probation officer each month, or as often as the probation officer requires.
The court can promote safety in cases involving domestic violence by implementing procedures that ensure the court receives timely reports from treatment programs and batterer intervention programs about the probationer’s attendance and participation.
Note, however, that “[MCL 771.3(1)(c)] does not apply to a juvenile placed on probation and committed under [MCL 769.1(3)] or [MCL 769.1(4)] to an institution or agency described in the youth rehabilitation services act, . . . MCL 803.301 to [MCL] 803.309.” MCL 771.3(1)(c).
2.Probation Swift and Sure Sanctions Act
The Probation Swift and Sure Sanctions Act, MCL 771A.1 et seq., established a voluntary, grant-funded “state swift and sure sanctions program” for the supervision of participating offenders who have been placed on probation for committing a felony. MCL 771A.3; see also MCL 771A.2(b). Under the Probation Swift and Sure Sanctions Act, a circuit court may apply to the State Court Administrative Office (SCAO) for a grant to fund a swift and sure probation supervision program. MCL 771A.4(3).20 A probationer participating in such a program is subject to close monitoring and to prompt arrest and the immediate imposition of sanctions following a probation violation. See MCL 771A.3; MCL 771A.5(1).
“The circuit court in any judicial circuit may adopt or institute a swift and sure sanctions court, by statute or court rule.” MCL 600.1086(1). “A swift and sure sanctions court shall carry out the purposes of the swift and sure sanctions act[.]” MCL 600.1086(2). “A circuit court that has adopted a swift and sure sanctions court may accept participants from any other jurisdiction in this state based upon either the residence of the participant in the receiving jurisdiction or the unavailability of a swift and sure sanctions court in the jurisdiction where the participant is charged. The transfer is not valid unless it is agreed to by all of the following individuals:
(a) The defendant or respondent.
(b) The attorney representing the defendant or respondent.
(c) The judge of the transferring court and the prosecutor of the case.
(d) The judge of the receiving swift and sure sanctions court and the prosecutor of a court funding unit of the swift and sure sanctions court.” MCL 600.1086(3). See also MCL 771A.4(4).
“A judge shall do all of the following if swift and sure probation applies to a probationer:[21]
(a) Inform the probationer in person of the requirements of his or her probation and the sanctions and remedies that may apply to probation violations.
(b) Adhere to and not depart from the prescribed list of sanctions and remedies imposed on the probationer.
(c) Require the probationer to initially meet in person with a probation agent or probation officer and as otherwise required by the court.
(d) Provide for an appearance before the judge or another judge for any probation violation as soon as possible but within 72 hours after the violation is reported to the court unless a departure from the 72-hour requirement is authorized for good cause as determined by criteria established by the state court administrative office.
(e) Provide for the immediate imposition of sanctions and remedies approved by the state court administrative office to effectively address probation violations. The sanctions and remedies approved under this subdivision may include, but are not limited to, 1 or more of the following:
(i) Temporary incarceration in a jail or other facility authorized by law to hold probation violators.
(ii) Extension of the period of supervision within the period provided by law.
(iii) Additional reporting and compliance requirements.
(iv) Testing for the use of drugs and alcohol.
(v) Counseling and treatment for emotional or other mental health problems, including for substance abuse.
(vi) Probation revocation.
(vii) Any other sanction approved by the [SCAO].” MCL 771A.5(1).
“An individual is eligible for the swift and sure probation supervision program if he or she receives a risk score of other than low on a validated risk assessment[,]” and is not charged with a crime under one or more of the following sections:
•MCL 750.316 (first degree murder),
•MCL 750.317 (second degree murder),
•MCL 750.520b (CSC-I),
•MCL 750.520d (CSC-III),
•MCL 750.529 (armed robbery)],
•MCL 750.544 (treason), and
•a major controlled substance offense.22 MCL 771A.6(2)-(3).
For a detailed discussion of the Probation Swift and Sure Sanctions Act, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol 3, Chapter 2.
D.Amending an Order of Probation
A court may amend a probation order in form or substance at any time. MCL 771.2(11); MCL 771.2a(5).23
“Except as provided in [MCL 771.2(10)], [MCL 771.2a], and [MCL 768.36], after the defendant has completed 1/2 of the original felony or misdemeanor probation period, he or she may be eligible for early discharge as provided in [MCL 771.2]. The defendant must be notified at sentencing of his or her eligibility and the requirements for early discharge from probation, and the procedure provided under [MCL 771.2(3)] to notify the court of his or her eligibility.” MCL 771.2(2).
MCL 771.2(10) prohibits certain defendants from benefiting from reduced probation. “A defendant who was convicted of 1 or more of the following crimes is not eligible for reduced probation under [MCL 771.2]:
(a) A domestic violence related violation of [MCL 750.81] or [MCL 750.81a], or an offense involving domestic violence as that term is defined in . . . MCL 400.1501.
(b) A violation of . . . MCL 750.84.
(c) A violation of . . . MCL 750.411h.
(d) A violation of . . . MCL 750.411i.
(e) A violation of . . . MCL 750.520c.
(f) A violation of . . . MCL 750.520e.
(g) A listed offense.
(h) An offense for which a defense was asserted under [MCL 768.36].
(i) A violation of . . . MCL 750.462a to [MCL] 750.462h, or former [MCL 750.462i or MCL 750.462j].” MCL 771.2(10).
MCL 771.2a addresses probation for individuals convicted of stalking under MCL 750.411h. MCL 768.36 addresses probation for individuals who were found guilty but mentally ill.
“If the court reduces a defendant’s probationary term under [MCL 771.2], the period by which that term was reduced must be reported to the department of corrections.” MCL 771.2(11).
A defendant is not entitled to notice or an opportunity to be heard regarding an amendment of a probation order, unless the amendment would result in a fundamental change in his or her liberty interest, such as confinement. People v Britt, 202 Mich App 714, 716 (1993) (placement in an electronic tether program is not the equivalent of confinement; accordingly, due process protections do not attach before amendment of a probation order to include placement in an electronic tether program). But see MCL 771.2(2)-(14), for detailed provisions governing eligibility for early discharge from probation, procedural matters concerning early discharge or other amendments to the terms of probation, and when a hearing must be held to review or modify a probationer’s probation.
“All probation orders are revocable subject to the requirements of [MCL 771.4b], but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, as otherwise allowed in [MCL 771.4b], or upon request of the probationer. Hearings on the revocation must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.” MCL 771.4(2).24
“In its probation order or by general rule, the court may provide for the apprehension, detention, and confinement of a probationer accused of violating a probation condition.” MCL 771.4(3).
If the defendant fails to comply with the conditions of probation,
•“[a] peace officer, without a warrant, may arrest a person” where “[t]he peace officer has reasonable cause to believe the person . . . has violated 1 or more conditions of a conditional release order or probation order imposed by a court of this state, another state, Indian tribe, or United States territory.” MCL 764.15(1)(g).
•“The court may issue a bench warrant or summons upon finding probable cause to believe a probationer has committed a non-technical violation of probation.” MCR 6.445(A).
•“The court must issue a summons,[25] rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation unless the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A).
A trial court’s jurisdiction to revoke a defendant’s probation and sentence him or her to imprisonment is limited to the duration of the probationary period; if the probationary period expires, the trial court loses jurisdiction to revoke probation and impose a prison sentence. People v Glass, 288 Mich App 399, 408-409 (2010).
“If a probation order is revoked, the court may sentence the probationer in the same manner and to the same penalty as the court might have done if the probation order had never been made.” MCL 771.4(5).
See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 2, for more information on probation revocation.
F.Technical Probation Violation
MCL 771.4b(1) (providing for a period of incarceration for technical probation violations that increases in length as the number of violations increases) does not apply to a probationer on probation for a domestic violence violation of MCL 750.81, or an offense involving domestic violence as that term is defined in MCL 400.1501.26 MCL 771.4b(6). There is a rebuttable presumption that no arrest warrant will issue for a technical probation violation. MCL 771.4b(7). Instead, the court will issue a summons or show-cause order to the probationer for the alleged technical probation violation. Id.
MCR 6.445(A) expressly provides that “[t]he court must issue a summons, rather than a bench warrant, upon finding probable cause to believe a probationer has committed a technical violation of probation . . . .” (Emphasis added.) The court may overcome the presumption that a summons will issue (rather than a bench warrant) if “the court states on the record a specific reason to suspect that one or more of the following apply:
(1) The probationer presents an immediate danger to himself or herself, another person, or the public.
(2) The probationer has left court-ordered inpatient treatment without the court’s or the treatment facility’s permission.
(3) A summons has already been issued for the technical probation violation and the probationer failed to appear as ordered.” MCR 6.445(A). See also MCL 771.4b(7)(a)-(c) (providing substantially the same information as does MCR 6.445(A)(1)-(3)).
At arraignment for the alleged violation, the court must “inform the probationer whether the alleged violation is charged as a technical or non-technical violation of probation, and the maximum possible jail or prison sentence.” MCR 6.445(B)(2).27 See also MCL 771.4b(8) (hearing on a technical probation violation must occur “as soon as is possible”).
If, after the probation violation hearing, the court finds that the probation violation was proved, the court must inform the probationer “whether the violation is a technical or non-technical violation of probation.” MCR 6.445(E)(2). If a probationer pleads guilty to a probation violation, the court must, among other things, “establish factual support for a finding that the probationer is guilty of the alleged violation and whether the violation is a technical or non-technical violation of probation.” MCR 6.445(F)(4).
“In lieu of initiating a probation violation proceeding under MCR 6.445, the court may allow a probationer to acknowledge a technical probation violation without a hearing.” MCR 6.450(A). The acknowledgment must be written28 and must provide the probationer with the specific information stated in MCR 6.450(A).29 Id. Specifically, and among other provisions, the acknowledgment must inform the probationer that acknowledging a technical violation could delay his or her eligibility for early discharge. MCR 6.450(A)(5); MCR 6.441. See also MCL 771.4b(2) (permitting written acknowledgment of a technical probation violation without a hearing).
G.Termination of the Probation Period
When a probationer’s term of probation terminates, the probation officer must report to the court that the probation period has ended. MCL 771.5(1).30 The officer must also inform the court of the probationer’s conduct during the probation period. Id. “Upon receiving the report, the court may discharge the probationer from further supervision and enter a judgment of suspended sentence or extend the probation period as the circumstances require, so long as the maximum probation period is not exceeded.” Id.
H.Early Discharge From Probation31
Except for a statute providing otherwise, “a probationer is eligible for early discharge from probation when the probationer has completed half of the original probationary period and all required programming.” MCR 6.441(A). At sentencing, in writing or orally, the court must inform the probationer about his or her eligibility for early discharge and the notice process set forth in MCR 6.441(B). MCR 6.441(A).
When a court receives notice of a probationer’s eligibility for early discharge, the court must review the case and consider the probationer’s conduct and the amount of restitution he or she owes the victim. MCR 6.441(C). Specific facts about the case affect whether a probationer may be discharged early and whether a hearing is required before the court may order early discharge. MCR 6.441(D)-(E).
A hearing must be held, after the court’s review of the case and before early discharge is granted, if a circumstance described in MCL 771.2(7) applies.32 MCR 6.441(E)(2). Specifically, a hearing must be held when the probationer is serving a term of probation for a felony offense eligible for early discharge when the offense involved a victim who requested notice of a change in the probationer’s status, including the probationer’s probation status. MCL 771.2(7); MCR 6.441(E)(2). In addition to a hearing for felony offenses eligible for early discharge, a hearing is also required when a probationer is serving a term of probation for a misdemeanor domestic violence offense, aggravated domestic violence offense, or child abuse if the offense is eligible for early discharge. MCL 771.2(7).
If a hearing is held to determine whether early discharge is appropriate, the prosecuting attorney must notify the victim of the date and time of the hearing. MCR 6.441(E). The probationer, and the victim, if applicable, are entitled to be heard. Id.
See MCR 6.441(F)-(H) for the remaining content of the early discharge rule regarding the possible outcome of a hearing, the prohibition against allowing early discharge eligibility to influence the original term of probation imposed, and the additional methods by which a probationer might gain early discharge. MCR 6.441(F)-(H).